In this post, I briefly described that Paul Manafort, in a challenge to the way the government charged his sleazy influence peddling, tried to distinguish his influence peddling from that of spies, both with respect to whether hiding the proceeds of sleazy influence peddling might merit forfeiture and whether lying about sleazy influence peddling was a separate crime from lying in his FARA filing. Manafort lost on the former point, Amy Berman Jackson punted the latter point until after trial. But in ruling on the former, she emphasized that the FARA crime was about acting as an undisclosed sleazy influence peddler, not just hiding it.

But the reference to section 951 does not support defendant’s position, since defendant acknowledges that section 951 plainly governs acting as an agent of a foreign government, and the language of the two provisions is quite similar. See Def.’s Mot. at 4–5; compare 18 U.S.C. § 951(a) (“Whoever . . . acts in the United States as an agent of a foreign government without prior notification to the Attorney General . . . shall be fined under this title or imprisoned . . . .”) with 22 U.S.C. § 612(a) (“No person shall act as an agent of a foreign principal unless he has filed with the Attorney General a true and complete registration statement . . . .”) and id. § 618(a) (imposing criminal penalties on any person who “willfully violates any provision of this subchapter or any regulation thereunder” or “willfully makes a false statement of a material fact or willfully omits any material fact” in a FARA statement). These laws are not just about paperwork; their object is to ensure that no person acts to advance the interests of a foreign government or principal within the United States unless the public has been properly notified of his or her allegiance. So both statutes expressly prohibit “acting” as a representative of a foreign entity without submitting the required notification to the Attorney General. For these reasons, the alleged international banking transactions could “promote,” and Manafort could realize “proceeds” from, a FARA violation.

With that ruling, ABJ judged that FARA is like spying, just not quite as serious.

Manafort is still fighting the issue, however (probably, in part, in preparation for an appeal, but maybe also to save the industry of sleazy influence peddling for all his fellow sleazy influence peddlers).

In both the joint pretrial statement and his proposed jury instructions, Every time the government emphasized that the crime is about acting as an unregistered sleazy influence peddler, Manafort objected and rewrote the government’s language to focus on registration. Here’s one example:

Defendant also objects to the following language under the section entitled Elements of the Conspiracy’s Objects:

In Count One, the government has alleged that one object of the conspiracy was to act as an unregistered agent of a foreign principal. For Count One, the government does not have to prove that the defendant committed this crime; only that this was an object of the conspiracy. In considering whether this was an object of the conspiracy, the following legal principles and definitions apply. A person willfully violates the FARA requirements if:

(1) The defendant acted in the United States as an agent of a foreign principal;

(2) The defendant acted without registering with the Attorney General; and

(3) The defendant acted willfully.

Defendant proposes the following replacement:

In Count One, the government has alleged that one object of the conspiracy was to fail to register as an agent of a foreign principal in violation of FARA. For Count One, the government does not have to prove that the defendant committed this crime; only that this was an object of the conspiracy. In considering whether this was an object of the conspiracy, the following legal principles and definitions apply. A person willfully violates the FARA requirements if:

(1) The defendant was required by law to register as an agent of a foreign principal;

(2) The defendant failed to register with the Attorney General; and

(3) In failing to register, the defendant acted willfully.

Manafort may be doing this just to try to avoid forfeiture.

But, in part because this is a rare case going to trial that will serve as precedent for other people, the debate is an interesting one, one Manafort may appeal no matter what happens (because the decision is worth millions to him).

Mueller is arguing that being a sleazy influence peddler without being honest about who you’re working for is like being a spy. Given how much damage sleazy influence peddlers have done to our country, that’s probably right. But (I think to save his ill-gotten gains), Manafort thinks selling out his country’s politics to the highest bidder is just a matter of paperwork.

As I disclosed July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.

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https://www.emptywheel.net/wp-content/uploads/2018/07/Paulie.jpg600476emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2018-09-07 10:22:202018-09-07 10:22:41The Government and Manafort Continue to Argue about the Agency of Being an Agent

This may go a long way to explaining who is paying Manafort’s lawyers. There are a bunch of Sleazy Influence Peddlers who would be very distressed to have their SIPpy cups taken away. If this point is worth millions to Paulie, it’s worth billions to K Street.

Well, I’d guess it is more to preserve personal grounds for appeal than on behalf of sleepy influence peddlers everywhere. Argument over the form of jury instructions is pretty standard, both sides try to optimize the language in their favor. Meh.

Thing is if the government wants to fight on forfeiture, they can string it out fore er, and will. You can easily spend millions fighting over your millions. Not sure Manaforts criminal b benefactors will keep doing that. This may be his best shot, and I don’t think it looks particularly promising for him.

I agree with both these comments, but I also see the point Bob Conyers is trying to make and how it kinda just misses the point implied in fearless leader’s post here.

Yes, of course, it’s ‘easier’ to make a charge of failing to register, and just as affirmatively it’s therefore vital the government’s aims here to satisfy the courts that in Manafort’s case that failure was both not remotely accidental and indeed critical to the success of his scheme. Where the two comments should meet (tho don’t) is at OUTCOMES: sentencing and forfeiture.

Simple oversight of a filing requirement gives off the look and feel of an ‘administrative law’ or ‘regulatory’ infringement, of the kind that’s typically met on proof of first brief with a fine and maybe a suspension of privileges for a while (only reaching jail time when the behavior is established as repeated so dismissive, habitual, chronic, ideological, part of a larger scheme, or something along those lines).

bmaz is bang-on in focusing on the forfeiture process, because that’s the ultimate leverage the government has here (We are, after all, living in a post Iran-Contra Ollie North world: there’s no serious basis for imagining Manafort is capable of shame.).

Where bmaz has the advantage over Bob Conyers here is that he knows from professional experience that conviction for committing a crime is one thing and sentencing & related consequences for that is quite another.

I noted with interest that Brett Kavanaugh kept harping on this yesterday, trying to leave the impression that he’s somehow been a ‘Friend To The Poors’ in writing in opposition to convicts being sentenced for behavior that’s most acutely described in counts on which juries have acquitted. My antennae perked up hard at that, because it’s about as disingenuous as the worst of Kavanaugh prevarications over the last 2 days. He really meant, On SCOTUS I’ll actively work to tamp sentencing of the likes of Manafort down to formatic regulatory slap on the wrist levels. The fact that such an effort might theoretically trickle down to the inner city state and local courts is heavy on the theory side and pathetic on the trickle.

Just saw this after I posted the reply, so I assume the threading will get a bit confused.

Anyway, thanks for the response, that makes the strategy of the prosecution clearer.

Also, I agree with your take on Kavanaugh. I’m sure we’ll see him arguing for a lot of leniency on things like search and seizure issues on white collar crime that will somehow never trickle down to your typical kid in a stop and frisk situation, except in maybe a small showy ruling that cops can easily ignore.

Would that mean their thinking is that since he’s in trouble either way, they may as well try to limit the crime as much as possible to make him seem like less of a rotten criminal and more of a daffy absent minded avuncular type? In other words, he’s not Mr. Potter from It’s a Wonderful Life, just Uncle Billy.

OK, Manafort is a sleaze and his lawyers are going to be working overtime to salvage anything but on his proposed change of (1) he ought to carry the day.

Gov’t version:

(1) The defendant acted in the United States as an agent of a foreign principal;

Kind of silly drafting – Sect. 612(a) notes that agent of foreign principals must register UNLESS they qualify for an exemption, as in 612(f) or 613. I can see why the Feds would like to overlook that, but…

Team Manafort wants:

(1) The defendant was required by law to register as an agent of a foreign principal;

That is more accurate and preserves an opportunity to argue they qualify for one of the exemptions. FWIW I don’t see any obvious exemptions, but I am not even a low-priced lawyer, let alone the top shelf guys working this one.

I can’t see where Manafort or Gates qualified for an exemption; they weren’t representing individual persons or businesses but a government entity. Gates actually spelled out they were “representing the Government of Ukraine in [Washington] DC” on at least one occasion cited in the 30-OCT-2017 indictment which makes Team Manafort’s requested change of language — from active to passive voice — mere filibustering.

My preferred guess is that this was just a triumph of pedantry on the part of Manafort’s lawyers.

With a gun to my head I would speculate that they are focusing on 612(f) where…

any person who is listed as a partner, officer, director, or employee in the registration statement filed by an agent of a foreign principal under this subchapter

is exempt. *Maybe* the Belgian NGO cutout they failed to use as a cutout registered them as officers and was disclosed by Firm A or B. A longshot, obviously. Would the Feds miss that, or would they argue the cutout doesn’t count because it was routinely bypassed? Does it matter if the cutout wasn’t used appropriately if they registered Manafort? Hmm.

“With that ruling, ABJ judged that FARA is like spying, just not quite as serious.”

Not arguing that such an impression is left, but IMHO this is more in the nature of a byproduct of both roots carrying the concept of “agency”.

There are academic papers, not infrequently lifted into the court system by criminal defense attorneys, that raise what range from concerns to serious alarms about the principles of agency being somehow ‘imported’ or ‘exported’ into criminal law. It’s not an easy tension to resolve. Academics in particular appear to come at it by working like the dickens to rationalize there being some sort of ‘social compact urgency’ in setting up a bright line between organized business and coordinated crime, thus arguing for the necessity in recognizing an ethereal (swamp gassy) standard of mens rea for OTOH joint criminal enterprise, versus on the other, say, the Amway business model.
(I’m a bit concerned this may leave the wrong impression that Dick DeVos’ pyramid schemed from con artistry and social pressure, constitutes the only widely-socially accepted means which humans have devised for fleecing their fellows. It’s definitely not that at all; it may, however, be the ‘purest’, and certainly most American, form of socially acceptable shell game.)

But, to me, it’s not so much that opportunistic prosecutors ‘lift’ agency into criminal law to prove criminal intent, as it is that some humans choose to corrupt social forms that depend on agency principles (or, in the case of Amway, some humans choose to associate themselves with a social form designed from the outset to exploit agency in ways that are prima facie corrupt).

Lobbying, however, is more like stock exchanges, or war bonds: there may be, and often is, at least some (even some seriously or urgent) social utility in their aims and typically as well in their formation. But they’re also such easy, so often ready-made platforms for enlistment into corruption.

It’s not like what Team Manafort is trying to accomplish here is without either precedent or support. In the case of Amway, the founders essentially went heavy on the bribery side of lobbying to overcome the perfectly rational objections to their pyramid scheme as prima facie criminally corrupt – and it worked! And while it certainly may not appear politically open at this time for the largely Beltway-centered lobbying industry to accomplish something like the same goal thru Manafort, I would expect a SCOTUS comprised of the Roberts 4 plus Kavanaugh to be highly receptive to the effort.

(I’m a bit concerned this may leave the wrong impression that Dick DeVos’ pyramid schemed from con artistry and social pressure, constitutes the only widely-socially accepted means which humans have devised for fleecing their fellows. It’s definitely not that at all; it may, however, be the ‘purest’, and certainly most American, form of socially acceptable shell game.)

OTish: the report that Sergei Skripal was working with Spanish intelligence (where he’d been posted by the GRU) reminds me of Isikoff’s piece on Spanish intercepts of conversations between Torshin and Alexander Romanov, and the prosecutor’s comment that Uday should be worried.

… plus a year on some probation office’s leash plus 200 hrs comserv. The last stands a chance of morphing into comperv, given the breadth of options and depending on the disposition of the p.o. who catches his assignment.

Papadopolous agreed to cooperate with Mueller’s office as part of his plea deal, delaying sentencing until that cooperation was complete. His lawyers said prosecutors last interviewed him in December, [2017] but he agreed to three extensions this year at the government’s request.

According to southpaw, Papa also had a $9500 fine, twelve months supervised release and 200 hours community service. The judge was impressed with Papa’s remorse.

Given how poor a liar and how unrepentant his former boss is, if the Don ever comes before the same judge, I think he could expect to move the decimal point about a yard to the right on all those stats.

Off-topic: I wonder how bmaz feels about Papadopoulos getting 14 days plus 200 hours of community service plus a year of checking in.

Me, I feel like the justice system is a joke, and having perjurers like Clarence Thomas and Brett Kavanaugh at the head of it is just perfect.

(Trying to stay on-topic after coming near to putting a brick through my TV after watching Sen. Kennedy tell John Dean that his testimony before the Judiciary Committee was worthless because “you only came forward [against Nixon] when you were cornered like a trapped rat”)

Objectively, even with the Republicans’ bums’ rush, there’s no way a pre-Fox News era senate approves Kavanaugh. Everything that was wrong with Bork is at least as wrong the “Koach K”, plus Bork was standard deviations more honest about his agenda. Koach K is, at best, Bork as ratfucker.

Three liberal groups have asked the Dems. to ask the DOJ to investigate coach k for perjury now and not wait until the Lying Judge is confirmed!! There is still time to cut this lying bastard off at the pass. The non-deplorable public should demand this investigation now.